STATE OF UTTARANCHAL & ORS. v.

KHARAK SINGH (Civil Appeal No. 4531 of 2007)

AUGUST 13, 2008. [R.V. Raveendran and P. Sathasivam, JJ]

The Judgment of the Court was delivered by

P. SATHASIVAM, J. 1. This appeal is directed against the judgment and order dated 15.5.2006 of the High Court of Uttaranchal at Nainital in Writ Petition No. 606 of 2003 (SS) whereby the writ petition filed by the respondent herein was allowed quashing the orders dated 5.3.1986 passed by the Divisional Forest Officer, Haldwani Forest Division, Dist. Nainital and dated 27.4.1991 passed by the Conservator of Forest, Western Circle, Nainital dismissing the respondent from service.

2. The brief facts are stated as under:

The respondent herein was a temporary Forest Guard and was posted in Nandhaur Range of Haldwani Forest Division, Nainital. In 1984, when he was incharge of Asani Beat in Nandhor Range of Haldwani Forest Division, illegal felling of 11 Sal trees and 24 Kokat species took place in Asani Beat Nos.  1,  3  and  5  which  were  allotted  to  the  U.P.  Forest  Corporation  for felling of marked dead, dying and diseased trees. In the diary maintained by the  Department,  during  the  months  of  March  and  April,  1984,  the respondent visited the above compartments regularly and certified that there was no illicit felling of trees in his beat during the period under reporting. On 23.5.1984, sub-Divisional  Forest  Officer,  Nandhaur seized 27 logs of Sal bearing transit hammer mark of Dolpokhra Transit Barrier in Haldwani. Having seen the hammer marks on the seized logs, on 24.5.1984 the SDO directed  Range  Officer  to  trace  the  illicit  felling  of  trees  in  and  around Dolpokhra.  On  being  questioned  by the  SDO,  the  respondent  could  not satisfy the SDO. Having confirmed the involvement of the respondent in the illicit felling of trees, the Division Forest Officer, Haldwani Forest Division by  letter  No.  40/25  dated  1.6.1984,  suspended  the  respondent.  On 19.12.1984, the Division Forest Officer served the charge sheet  upon the respondent  and  the  respondent  gave  his  reply  on  9.4.1985.  Thereafter, enquiry  was  entrusted  to  Sri  P.V.  Lohni,  who  submitted  his  report  on 16.11.1985 to the Divisional Forest Officer, Haldwani. On the basis of the

inquiry  report,  the  Divisional  Forest  Officer  vide  order  dated  6.3.1986 dismissed  the  respondent  herein.  Feeling  aggrieved,  the  respondent preferred  an  appeal  before  the  Conservator  of  Forest,  Western  Circle, Nainital,  Appellant  No.2  herein  and  the  same was  dismissed  vide  order dated 27.4.1981. Questioning the said order, the respondent herein preferred writ petition before the High Court praying for issuing a writ of certiorari. The  High  Court  vide  order  dated  15.5.2005  issued  a  writ  of  certiorari quashing the orders dated 5.3.1986 passed by the Divisional Forest Officer, Haldwani as well  as order dated 27.4.1991 passed by the Conservator  of Forest, Western Circle, Nainital. The High Court has directed the appellants to  reinstate  the  respondent  in  service  with  all  consequential  benefits. Aggrieved by the said order, this appeal by special leave has been preferred by the State of Uttaranchal, Conservator of Forest, Western Circle, Nainital and Divisional Forest Officer, Haldwani Forest Division, Nainital.  

3. We heard Mr. S.S. Shamshy, learned counsel, for the appellants and Mr. P. Vinay Kumar, learned counsel, for the respondent.  

4. Learned counsel appearing for the appellants mainly contended that the High Court committed an error in quashing the order of dismissal of the respondent on the ground that the enquiry was not properly conducted and was not free from bias. On the other hand, according to him, the enquiry was conducted according to rules and the punishment was awarded based on the gravity of charges proved. Per contra, learned counsel for the respondent supported  the  impugned  order  of  the  High  Court  by  pointing  out  the infirmities in conducting enquiry.

5.  Before  analyzing  the  correctness  of  the  above  submissions,  it  is useful to refer various principles laid down by this Court as to how enquiry is to be conducted and which procedures are to be followed.  

6. The following observations and principles laid down by this Court in Associated Cement Co. Ltd. vs. The Workmen and Anr. [1964] 3 SCR 652 are relevant:

“… … In the present case, the first serious infirmity from which the enquiry suffers proceeds from the fact that the three enquiry officers claimed that they themselves had witnessed the alleged misconduct  of  Malak  Ram.  Mr.  Kolah  contends  that  if  the Manager and the other officers saw Malak Ram committing the act  of  misconduct,  that  itself  would  not  disqualify  them  from holding the domestic enquiry. We are not prepared to accept this argument.  If  an  officer  himself  sees  the  misconduct  of  a

workman, it is desirable that the enquiry should be left to be held by some other person who does not claim to be an eye-witness of the impugned incident. As we have repeatedly emphasised, domestic enquiries must be conducted honestly and bona fide with a view to determine whether the charge framed against a particular employee is proved or not, and so, care must be taken to see that these enquiries do not become empty formalities. If an  officer  claims  that  he  had  himself  seen  the  misconduct alleged against an employee, in fairness steps should be taken to see that the task of holding an enquiry is assigned to some other officer. How the knowledge claimed by the enquiry officer can vitiate the entire proceedings of the enquiry is illustrated by the present enquiry itself. … …..  ….. ….. It is necessary to emphasise that in domestic enquiries, the employer should take steps first to lead evidence against  the  workman  charged,  give  an  opportunity  to  the workman to cross-examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employees that at the very  commencement  of  the  enquiry,  the  employee  should  be closely  cross-examined even before any other  evidence is led against  him.  In  dealing  with  domestic  enquiries  held  in  such industrial  matters,  we cannot  overlook  the fact  that  in  a large majority of cases, employees are likely to be ignorant, and so, it is necessary not to expose them to the risk of cross-examination in  the  manner  adopted  in  the  present  enquiry  proceedings. Therefore, we are satisfied that Mr. Sule is right in contending that the course adopted in the present enquiry proceedings by which Malak Ram was elaborately cross-examined at the outset constitutes another infirmity in this enquiry.” 7.  In  Managing  Director,  ECIL,  Hyderabad and Others  vs.  B.

Karunakar and Others, (1993) 4 SCC 727, it was held:  “Where the enquiry officer is other than the disciplinary authority, the  disciplinary  proceedings  break  into  two  stages.  The  first stage  ends  when  the  disciplinary  authority  arrives  at  its conclusions on the basis of the evidence, enquiry officer’s report and  the  delinquent  employee’s  reply  to  it.  The  second  stage

begins when the disciplinary authority decides to impose penalty on  the  basis  of  its  conclusions.  If  the  disciplinary  authority decides to drop the disciplinary proceedings, the second stage is not even reached. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of  the  inquiry  viz.,  before  the  disciplinary  authority  takes  into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the  disciplinary  authority  has  considered  the  findings  in  the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away  by  the  Forty-second  Amendment.  The  second  stage consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding  upon  the  penalty.  What  is  dispensed  with  is  the opportunity  of  making representation  on the  penalty  proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the  Forty-second  Amendment  of  the  Constitution,  the  point  of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after  the  Forty-second  Amendment  of  the  Constitution  is  to advance  the  point  of  time  at  which  the  representation  of  the employee  against  the  enquiry  officer’s  report  would  be considered.  Now, the disciplinary authority has to consider the representation  of  the  employee  against  the  report  before  it arrives at its conclusion with regard to his guilt or innocence in respect of the charges. Article  311(2)  says  that  the  employee  shall  be  given  a “reasonable opportunity of being heard in respect of the charges against him”. The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne out

by the evidence or are arrived at by overlooking the evidence or misconstruing it,  could themselves constitute new unwarranted imputations. The proviso to Article 311(2) in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate  appointed to  hold the inquiry and to  assist  him),  the employee’s reply to the enquiry officer’s report and consideration of  such  reply  by  the  disciplinary  authority  also  constitute  an integral part of such inquiry.  Hence, when the enquiry officer is not the disciplinary authority, the  delinquent  employee has a right  to  receive a copy of  the enquiry officer’s report before the disciplinary authority arrives at its  conclusions  with  regard  to  the  guilt  or  innocence  of  the employee with regard to the charges levelled against him. That right is a part of the employee’s right to defend himself against the charges levelled against him. A denial of the enquiry officer’s report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.  8.  In  Radhey  Shyam  Gupta  vs.  U.P.  State  Agro  Industries

Corporation Ltd. and Another, (1999) 2 SCC 21, it was held: “34. But  in  cases  where  the  termination  is  preceded  by  an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases  where  the  employer  feels  that  there  is  a  mere  cloud against  the  employee’s  conduct  but  are  cases  where  the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee — even though such acceptance of findings is not

recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases.” 9. In Syndicate Bank and Others vs. Venkatesh Gururao Kurati,

(2006) 3 SCC 150, the following conclusion is relevant:

“18. In our view, non-supply of documents on which the enquiry officer does not rely during the course of enquiry does not create any  prejudice  to  the  delinquent.  It  is  only  those  documents, which  are  relied  upon  by  the  enquiry  officer  to  arrive  at  his conclusion,  the  non-supply  of  which  would  cause  prejudice, being violative of principles of natural justice. Even then, the non- supply of those documents prejudice the case of the delinquent officer must be established by the delinquent officer. It is well- settled law that the doctrine of principles of natural justice are not embodied  rules.  It  cannot  be  put  in  a  straitjacket  formula.  It depends  upon the  facts  and circumstances  of  each  case.  To sustain the allegation of violation of principles of natural justice, one must  establish that  prejudice has been caused to him for non-observance of principles of natural justice.” 10.  In  regard  to  the  question  whether  an  enquiry  officer  can

indicate the proposed punishment in his report, this Court, in a series of decisions has pointed out that it  is for the punishing/disciplinary authority to impose appropriate punishment and enquiry officer has no role in awarding punishment. It is useful to refer to the decision of this Court in A.N.D’Silva vs. Union of India, (1962) Supp 1 SCR 968 wherein it was held:

“In  the  communication  addressed  by  the  Enquiry  Officer  the punishment  proposed  to  be imposed upon the  appellant  if  he was found guilty of the charges could not properly be set out. The  question  of  imposing  punishment  can  only  arise  after enquiry is made and the report of the Enquiry Officer is received. It is for the punishing authority to propose the punishment and not for the enquiring authority.” 11.  From  the  above  decisions,  the  following  principles  would

emerge: i) The  enquiries  must  be  conducted  bona  fide  and  care

must  be  taken  to  see  that  the  enquiries  do  not  become  empty formalities.

ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps  should be taken to  see that  the  task  of  holding an enquiry is assigned to some other officer.

iii) In  an enquiry,  the employer/department  should take steps first  to  lead  evidence  against  the  workman/delinquent charged,  give an opportunity  to  him to  cross-examine the witnesses  of  the  employer.  Only  thereafter,  the workman/delinquent be asked whether he wants to lead any evidence  and  asked  to  give  any  explanation  about  the evidence led against him.

iv) On receipt of the enquiry report, before proceeding further, it is  incumbent  on  the  part  of  the  disciplinary/punishing authority  to  supply  a  copy  of  the  enquiry  report  and  all connected  materials  relied  on  by  the  enquiry  officer  to enable him to offer his views, if any.  

12.  Now, let  us consider  the merits  of  the case on hand and whether the High Court is justified in quashing the orders passed by the disciplinary authority as well as the appellate authority dismissing the respondent  from service. In the proceedings Letter  No. 1644/8 Haldwani dated December 19, 1984 (Annexure-P1) after furnishing certain  factual  details,  the  following  charges  have  been  levelled against the delinquent:

“Charge 1:  You have concealed the  illegal  cutting  which  took place in Asani Block from your higher officials deliberately which caused huge financial loss to the department.  Charge  2:  You  have  not  obeyed  the  orders  of  your  higher officials and you have traveled leaving your working without any reason in arbitrary manner. Charge  3:  You  have  shown  negligence  in  discharging  your duties.” Though a detailed explanation has been submitted controverting

the  above  charges,  no  enquiry  in  terms  of  the  above-mentioned principles  was  ever  conducted.  On the  other  hand,  one  Mr.  P.C. Lohani,  Dy. Divisional  Forest  Officer,  Nadhor acting as an enquiry

officer  after  putting  certain  questions  and  securing  answers submitted  a  report  on  16.11.1985.  No  witnesses  were  examined. Apparently there was not even a presenting officer. A perusal of the report shows that the enquiry officer himself inspected the areas in the  forest  and  after  taking  note  of  certain  alleged  deficiencies secured  some  answers  from  the  delinquent  by  putting  some questions. It is clear that the Enquiry Officer himself has acted on the Investigator, Prosecutor and Judge. Such a procedure is opposed to principles of natural justice and has been frowned upon by this Court.

13. Another infirmity in the report of the enquiry officer is that he concluded the enquiry holding that all the charges have been proved and he recommended for dismissal of the delinquent from service. The last paragraph of his report dated 16.11.1985 reads as under:-

“During the course of above inquiry, such facts have come into light from which it is proved that the employee who has doubtful character and does not obey the order, does not have the right to continue in the government service and it is recommended to dismiss him from the service with immediate effect.”  

(emphasis supplied) Though there is no specific bar in offering views by the enquiry

officer, in the case on hand, the enquiry officer exceeded his limit by saying that  the officer  has no right  to  continue in  the government service  and  he  has  to  be  dismissed  from service  with  immediate effect. As pointed out above, awarding appropriate punishment is the exclusive  jurisdiction  of  the  punishing  /disciplinary  authority  and  it depends upon the nature and gravity of the proved charge/charges and other attended circumstances. It is clear from the materials, the officer,  who  inspected  and  noted  the  shortfall  of  trees,  himself conducted the enquiry, arrived at a conclusion holding the charges proved  and  also  strongly  recommended  severe  punishment  of dismissal from service. The entire action and the course adopted by the enquiry officer cannot be accepted and is contrary to the well- known principles enunciated by this Court.  

14.  A  reading  of  the  enquiry  report  also  shows  that  the respondent  herein was not furnished with the required documents. The  department’s  witnesses  were  not  examined  in  his  presence. Though the respondent who was the writ petitioner specifically stated so in the affidavit before the High Court in the writ proceedings, those

averments were specifically controverted in the reply affidavit filed by the department. Mere denial for the sake of denial is not an answer to the specific allegations made in the affidavit. Likewise, there is no evidence to show that after submission of the report by the enquiry officer  to  the  disciplinary  authority,  the  respondent  herein  was furnished with the copy of the said report  along with all  the relied upon documents. When all these infirmities were specifically pleaded and  brought  to  the  notice  of  the  appellate  authority  (i.e.  Forest Conservator), he rejected the same but has not pointed the relevant materials  from  the  records  of  the  enquiry  officer  and  disciplinary authority to support his decision. Hence, the appellate authority has also committed an error in dismissing the appeal of the respondent.

15. After taking note of all the infirmities and in the light of the various principles enunciated by this Court, the High Court has rightly interfered and quashed the orders dated 05.03.1986 passed by the Divisional Forest Officer, Haldwani as well as order dated 27.04.1991 passed by the Conservator of Forest, Western Circle, Nainital.  

16. In view of the above discussion and conclusion, the appeal fails and the same is dismissed. However, there will be no order as to costs.